The previous week's readings focused on the historical background of the Constitution. We looked at the conflicts that have existed between the executive and legislative authorities, and how executive power is attained at the expense of the legislature. The most critical moment in this historical process was the signing of the Declaration of Right which forced the executive to concede many powers to the parliament. Considering that the parliament embodies the freedom of the individual, this document set the stage for the establishment of individual liberty.
Now we investigate the lessons learned by the founders and how they translated them into the legislative institution established in Article One. As a point of comparison we will also look at the Texas Legislature and where it is similar to the U.S. Congress and where it is different. We will stick to the letter of the Constitution and the controversies associated with it. Additional institutions will be covered in the next two weeks.
Goals: After reading this material, you should be comfortable with the following:
What different proposals were made in the Constitutional Convention about legislative power and the design of the legislature?
The bicameral Congress was a key feature of the Great Compromise. What dispute did it resolve? How?
What are the principle design differences between the House of Representatives and the Senate?
What is the difference between a delegate and a trustee?
Be prepared to describe the purpose of each of the ten sections of Article One.
Be familiar with the law making process as articulated in section seven.
What specific powers are delegated to Congress?
What checks does Congress have on the other two branches?
What checks do the other branches have on Congress?
What are the key constitutional features of the Texas Legislature?
How is the Texas Legislature similar to and different from the U.S. Congress?
The Constitutional Design
The Constitutional Convention, if you recall, was held in order to strengthen the national government. In order to do so, a national executive and judicial branch had to be established, but more importantly the authority of the national government had to be based on the consent of the general population. There had to be a direct connection between the people of the entire country and governing system. The primary mechanism for doing so was the legislature. Under Articles of Confederation there was no connection between the people and the national government. The states intervened between the two. The states were able then to use their position to negate the ability of the national government to pass laws that could limit state power. For Patrick Henry this was perfectly fine, but for Alexander Hamilton it was not. The Virginia Plan -- and Hamilton's Plan -- were blatant attempts to bypass the states and connect the power of the national government with the people. People could vote directly for members of the lower chamber in each plan, and in the Virginia Plan the lower chamber would then select the upper chamber. In neither plan were states able to select members of the legislature as they had been able to do under the articles. The states suddenly had no standing in the national government.
Supporters of states rights understood the threat this posed for the power of states, and objected. The New Jersey Plan they introduced following the discussion of the Virginia Plan was an attempt to preserve state power. The bicameral system that passed the convention (the Great Compromise) incorporated elements of both. The resulting Congress contains within it the problematic idea that the authority of the national government rests on both the people and the states. Of course this fits easily within the divided nature of the decentralized American system. The representatives of the people can check the representatives of the states. In addition the design allows for the national government to incorporate two distinct types of representative styles in Congress, the delegate and the trustee. The difference between the two touches on a key conflict concerning representation itself. Should a population be represented by people who stick as closely as possible to the direct interests of the population as expressed at a particular point in time, or should the representative look to the future and make decisions based on what they feel best secures those long term interests? In the Articles of Confederation, states could recall delegates at anytime during a session of the legislature. This gave the states complete control over Congress, but it also prevented the institution from effectively securing the long term health of the country. Sometimes what is beneficial in the long term, is not popular in the short term.
So here's the dilemma, we want to be able to control legislatures, but we want them to be effective. We don't like the idea of people spending long periods of time as legislators -- time they could be spending in the local community -- but we also want representatives to know enough about the legislative process to be able to use it to further the interests of their constituents. So what to do? The bicameral system provides a solution. The lower chamber -- The House of Representatives -- is designed to provide delegate representation while the upper chamber -- The Senate -- acts as a trustee. The reason is because of the design of each. Members of the House have two year terms, represent small relatively compact districts, and are voted in directly by the general population. In addition, the entire chamber is up for election at the same time, meaning that any shift in public opinion will have an impact on everyone in the chamber. Not so in the Senate. Senators serve for six year terms, represent entire states -- which, unless you are Wyoming, represent far larger districts than the House, and were originally selected by state legislatures, not the people. In addition, Senators serve overlapping terms of office. Only 1/3rd of Senators face the voters every election, 2/3rds sit each election out. This means that any shift in public opinion will only impact a small minority of Senators in each election. Shifts that cancel themselves out will have no impact on the legislative process. Considering that bills cannot be presented to a President for a signature unless both chambers agree to the bill, each is in a position to check the efforts of the other. Compromise -- in the form of a conference committee -- is generally required before anything passes Congress. Key Constitutional Features of the United States Congress
Here we go section by section over the Section in Article One in the United States Constitutions
The legislative is separated from the other powers and vested in a bicameral institution. Note the phrase "herein granted" which is generally taken to mean that the legislative powers are limited to those subjects listed in Article 8. This was one of the reasons why the Federalists did not believe a Bill of Rights was necessary. Congress did not have the jurisdiction to do any of the things the Bill of Rights lists. Section Two: The House of Representatives
- Annotations from Findlaw.com.
- Pediatric: Section Two
- Website: The U.S. House of Representatives.
This section contains the basic design of the House of Representatives. It establishes that the people of the several states are able to vote directly for House representatives, but also that the states are able to determine who gets to vote. It is the chamber most closely connected to the general population and the one that is supposed to confer a sense of legitimacy to the national government. It is the institution most likely to compete with the states for the allegiance of the citizens. But since suffrage belongs to the states, and would until the 15th Amendment, among others, would federalize it. The section next sets age and residency requirement and states that members of the House of Representatives must actually live in the states that they represent. Notice that it says "states" and not "districts." There is nothing in the Constitution that states that districts -- the 435 relatively equal political sub-units spread across the country -- must exist. Some states early on were represented in the House by at-large representatives. Districts evolved over time however and allow members of the House to represent local interests on the national level.
The reason we have a census is in order to ensure that representation in the House stays relative to the distribution of population across the states. The number of districts in a state corresponds to the number of the people that live in the state as a percentage of the general population (click here for how this is done). But the drawing of districts raised a question that would take many years to address. Do the districts have to be equal in size? Once drawn, districts were sometimes not redrawn for decades. This was the case in Tennessee, where districts had not been redrawn for 60 years. Over that time some urban districts had ten times the population of some rural districts. The fact that each had a single vote in the House -- as well as state legislatures also -- violated the principle of equal representation, which does not exist in the Constitution. The concept of equal representation is not articulated in the Constitution, but in Baker v. Carr, it was mandated that districts be redrawn after every census in order to ensure that people are protected equally. This is a controversial decision since some argue that it is an example of judicial activism. The courts went beyond the clear language of the Constitution to solve what could have better been solved through the political process.
The apportionment clause also brings up the 3/5ths compromise, one of three clauses in the Constitution which deal with slavery (without ever bringing up the term). When vacancies arise in the House, the executive authority of that state can call an election. In Texas this would be administered, as all elections are administered, by the Secretary of State's Office. The only position established in the Constitution is the office of the Speaker. The Speaker was originally intended to be a neutral presiding officer over the House floor, but early in the history of the chamber the potential political power of the position was recognized. As political parties evolved in the chamber, each party would nominate its leaders to be Speaker and the majority party would be able to win the position. This is still the case to this day.
The section then states that other offices can then be created, and many have. These correspond to the large number of institutions that have been created in the House since the first Congress in 1789. Over 10,000 people now work for the House in some capacity. Leadership positions include administrative positions (Chief Administrative Officer, Clerk, House Architect), party positions (floor leaders and whips for the majority and minority), and committee positions (chairs and subcommittee chairs), among others. The House also has the "sole power of impeachment." Together with a trial, this allows the legislature to check the power of the executive and judicial branches by removing people from power. An impeachment is similar to a grand jury indictment. It simply allows a trial to go forward. A simple majority vote (not stipulated in the Constitution) is all that is necessary for the the trial to go forward. Section Three: The Senate
- Annotations from Findlaw.com.
- Wikipedia: Section Three.
- Website: U.S. Senate.
This section outlines the design, elections and powers of the Senate. The first two clauses establish that the Senate is not only directly tied to state governments, but given enough distance from the preferences of the population (with six year terms) to allow them to act as trustees who can look at the long term interests of the country (anti-federalists would argue that this also gives them enough time to turn oligarchic). States are represented equally and their legislatures choose Senators, so have some degree of control over the Senate itself. This arrangement lasted until Progressives in the early 20th century pushed through the 17th Amendment which changed the process to a popular election of the citizens of the state. The second clause describes the overlapping electoral scheme which is still in operation. This is an additional feature which limits the connection between the general population and the institution. Senators are divided into three separate classes (see class II here). Only one class, one third of the Senators, face the voters in any election. In other words, every two years one third of the 100 Senators is subject to removal from office. Two-thirds are not, so the institution is insulated from the preferences of the electorate. The state legislatures are given the power to fill vacancies, but when they are in recess, the governors can fill the seat with a temporary appointment. Senators have to be a little older than members of the House, but also must reside in the state they represent.
Next we have the only shared position in the Constitution. The Vice President in the executive branch is also the presiding officer (the President) of the Senate in the legislative branch. The VP cannot vote, except to break a tie. Opponents of this measure in the Constitutional Convention argued that this would consolidate executive and legislative power, and lead to tyranny. Others argued that the VP had nothing to do, so there was no harm in giving him the powerless position of President of the Senate. The dual nature of the position makes it ambiguous. Is the person who holds it an executive official or a legislator? Again, other positions can be created, and these include administrative positions that take care of the business of the Senate as well as party and committee positions. Along with the House, the Senate employs thousands of people including the staff people that help run committees and members offices.
The final two paragraphs of Section Three are concerned with the trial of impeached officials. When these things occur the Senate Chamber in fact become a trial court (though not a criminal trial court). The Senators are under oath or affirmation, the Chief Justice presides over trial of presidents, and convictions occur only with two-third votes. This is to minimize the possibility the presidents will be removed for political or policy reasons. It is also stated that convictions only apply to removal from office, the convicted is not sent to jail, again this is not a criminal proceeding. It does not prevent a criminal case from going forward however. Section Four: Congressional Elections and Yearly Meetings
- Annotations from Findlaw.com.
- Wikipedia: Section Four.
The first clause grants more control to the states over the national legislature by allowing them to set the time, place and manner of holding elections, but Congress can alter those regulations, except concerning where elections will be held. The second clause states that Congress shall assemble at least once every year, and sets a date for the meeting, which was changed in the 20th Amendment. This seems like a relatively non-controversial clause until you remember that one of the key sources of executive power was his ability to prevent Parliament from meeting for sometimes long periods of time, such as the Eleven Years Tyranny under Charles the First. It reminds us of the central role legislatures were argued to play in enhancing individual freedom from the executive. Section Five: Qualification, Rules of Procedure, and Expulsion of Members
- Annotations from Findlaw.com.
- Wikipedia: Section Five.
In the first clause, each chamber is given the ability to determine whether the individuals sent from each of the state in fact has the qualifications to hold the office. Once a majority has been reached, each chamber can conduct official business. A quorum is in fact rarely present at any moment on the floor of either chamber. Other requirements, including committee membership, actually requires that members of each chamber be in multiple places at any one moment so the requirement is probably impossible. If a quorum is necessary, one can be called relatively quickly. If necessary, each chamber can also mandate that those who are not present attend. It is illegal for members to stop the legislative process form going forward by not attending the session.
Each chamber can establish its own rules of procedure. As time has passed, each chamber has developed into unique institutions as rule of procedure have varied in each. The large size of the House (435 members) has led to the development of strict rules guiding floor proceedings, a rules committee determines, for example, how much time can be spent debating an item on the floor and whether amendments can be offered. Anything said or added to a bill has to be relevant, or germane, to the bill. These rules give the floor managers (the majority and minority leaders of each party) great control over the house floor, giving them additional means of punishing and rewarding members. House members can only speak if recognized to do so by the floor manager.
The Senate, due to its lower numbers and less contentious environment, has never developed similar rules. Norms guide the behavior on on the floor, each Senator recognizes the next Senator to speak (this is done following rules of seniority, which is a major determinant of who gets to do what in the Senate), so there isn't the same opportunity for party leaders to control individual members. The lack of a time limit has led to the development of the filibuster as a procedural tactic to delay activity in the Senate. A vote of 60 Senators is required to invoke cloture, thereby stopping debate and proceeding directly to a vote. There are no rules regarding "germaneness", so a large variety of irrelevant amendments can be added to a bill that seems likely to pass. This can be a way for a minority of Senators to compel passage of a pet bill by forcing other Senators to vote for it. It is rare for members of Congress to be expelled, but it can happen. Here is a list of expelled and censured Senators.
Since the time of the first Congress in 1789, each chamber has kept a journal of its proceedings, as they are able to do following constitutional language. The Congressional Record is the title of this record and contains a transcript of every thing spoken in each chamber. Its a great historical document. Here is a link to the Congressional Record online, and here is a link to early journals kept by Congress. If one-fifths of the members of either chamber want a recorded vote, it is taken. This also provides a great historical record and allows constituents to follow the behavior of their elected officials. Interest groups can also use these records to grade congressmen based on how closely they support the interests of the group. Finally, since the legislature can only function if both chambers are meeting, neither one can adjourn without the consent of the other. Section Six: Compensation, Privilege from Arrest, Free Speech on the Floor, and Conflicts of Interest
- Annotations from Findlaw.com.
- Wikipedia: Section Six.
The first clause simply states that legislators are to be paid for their services. It does not stipulate how much or how that is to be determined. The 27th Amendment states that any raise in pay cannot take effect until the next Congress convenes.
Next, members of Congress are privileged from arrest in going to and from Congress (with exceptions) and from law suits pertaining to what they say on the floor of either chamber. Both are ways to ensure that members of each chamber are insulated from the executive branch who might wish to arrest opponents in the legislature. King Charles attempted to do something similar in Parliament, which did nothing to keep his head attached to his body. Each of these freedoms can be traced back well into British history. The second clause simply states that members of Congress can't hold other offices, nor can other officers become members of Congress. The potential for conflicts of interest ought to be obvious. Section Seven: Revenue Bills and the Bill Making Process.
- Annotations from Findlaw.com.
- Wikipedia: Section Seven.
This section provides a broad outline of the bill making process. It begins by making a crucial statement. Bills for raising revenue must be first introduced in the House. Since the House is drawn to be closest to the general population and is argued to be most closely controlled by it, then this is the best ways to ensure that tax legislation is in fact passed with the consent of the governed. It then proceeds to a discussion of the bill making process, but it only discusses what happens to a bill once it passes both chambers of Congress and is presented to the president. The right of each chamber to develop rules of procedure discussed above has led to the development of an elaborate system for making laws. This process involves two institutions not mentioned in the Constitution: the political party and the committee.
Political parties evolved quickly in Congress despite the fact that eminent individuals such as George Washington argued against them. They are effective tools for organizing members of each chamber, both within and across each chamber, as well as with the president. Both major parties have evolved to the point where they have sophisticated organizations that include policy and steering committees that help develop legislation and figure out how best to pass them. If the party is in the minority, they determine how best to defeat policies they do not like. Committees evolved in the early Congresses as organizations that can focus on the policies implemented by certain executive branch agencies. As agencies developed to implement certain laws, a congressional committee was generally established in each chamber to oversee the implementation of that law. For example, when legislation establishing the Department of the Treasury was passed, the House established the committee on Ways and Means to oversee it. Tight relationships have since developed between these institutions. It is not surprising to see people go from one institution to another.
Committees,or standing committees , have worked themselves into the bill making process. Each chamber has about 20 such committees which allow for member of Congress to specialize on a specific topic. Each committee has a number of subcommittees that allow for further specialization. Generally bills are assigned to a committee after they are introduced into the House or Senate, and then the committee sends it down to the appropriate sub-committee. This process is very important because members of Congress compete to be members of particular committees based on the expectation that they will be able to consider certain bills when they are introduced in Congress. If the sub-committee chooses to hear the bill -- they can always table it -- they can have hearings on it, and mark up it up, meaning they can go line by line through the bill and change whatever they want. If reported favorably, the process starts again at the full committee. If approved by the full committee, it then goes to the floor for consideration by the full body.
As mentioned above, if the bill is reported to the floor of the House, the Rules Committee has to determine the rules for debate for the bill. This means stipulating the amount of time that can be spent debating the bill and whether amendments can be offered -- an open or closed rule. If the bill passes one chamber, it goes to the other and the process starts again. Since the resulting bill will likely look very different once it emerges both chambers, a conference committee is generally necessary to reach a compromise between the two chambers and if that compromise (the conference report) passes both chambers, that is the bill that is presented to the president. Note that nothing above is written in the Constitution, and that this is a very compressed overview of the process. See How Our Laws Are Made for a full version of the process. It is also subject to change. In addition, there is no reason for every bill introduced into Congress to follow this entire process. In Thomas, which contains information about the legislative process from the Library of Congress, full information about how every bill passed in the last 30 years is available online. Some take the full process, while others are fast tracked for whatever reason.
Section Seven does state that once a bill is presented to the president, he can sign it and let it pass into law without a signature -- but only if at least ten legislative days elapse, or veto the bill. If the bill is vetoed, it is sent back to the chamber that first passed the bill for another vote. If two thirds of the chamber pass the bill, it is sent to the other chamber and if the process is repeated, then the bill becomes a law over the president's veto. One of the more controversial activities of recent presidents has been the use of signing statements, sometimes undisclosed, that outline the president's interpretation of the bill he is signing. This way, he may not have to veto a given bill, since he has made it into whatever he wants it to be. Section Eight: The Enumerated Powers of Congress
- Annotations from Findlaw.com.
- Wikipedia: Section Eight.
In 2301, we covered the reasons why the constitutional convention was called. It was driven by Federalists who wanted to ensure that the national government possessed the powers necessary to establish the United States as a viable commercial republic. This meant clearly establishing that the Congress could pass laws about commercial and military issues. Strict constitutionalists argue that the powers of the national government are largely restricted to the items listed here. Some wiggle room has been found in the two "elastic clauses." These are the necessary and proper clause and the commerce clause. Section Nine: The Limits of Congressional Power
- Annotations from Findlaw.com.
- Wikipedia: Section Nine.
This section establishes clear restrictions on governmental power. Aside from political debates about this subject that hinge on the proper definition of "necessary and proper" and "commerce," explicit limits are established in Section Nine. Some of these restrictions are ancient (habeas corpus and ex post facto laws) others are meant to clarify that the United States was not a hereditary aristocracy as was Britain. One problem raised by this section concerns those powers not listed here. It is a similar argument presented by opponents to the Bill of Rights. When one bothers to list a few items that are clearly restricted from the national government, what about those that are not mentioned? If this is in fact a thorough list, then the national government has far broader powers than those simply listed in Section 8. Section Ten: The Limits of State Power
- Annotations from Findlaw.com.
- Wikipedia: Section Ten.
One of the consequences of the states ratifying the Constitution was that they accepted the idea that they were no longer nations, and did have power to do the things that nations are able to do. These limits are listed in Section Ten of the Constitution. The specific limitations concern the ability of states to engage in commercial and diplomatic treaties and military actions separate from the national government. The Federalist and Anti Federalist Debate
As we discussed in 2301, immediately following the signing of the Constitution, a debate began concerning whether the document should be ratified by the states. The Federalist Papers, written collectively and published anonymously by John Jay, Alexander Hamilton and James Madison argued in favor of ratification while a more disorganized group called the Anti-Federalists argued against it. Out of 87 total articles written by the Federalists, the fourteen below concern the design of the legislature. Here is a brief outline of the arguments covered in each:
52 - The qualifications of the electors of the house and those that are eligible to be elected to the house. Suffrage is determined by the states. The two year term is justified. "It is essential to liberty that government in general should have a common interest with the people." Discusses the frequency of elections and the design of the House of Commons. 53 - More about the House. The frequency of elections matters: “Where annual elections end, tyranny begins.” But the longer one is in office, the more experience one acquires. There's your dilemma.
54 - Concerns the Apportionment of members of the House to the various states, justifies the 3/5ths compromise.
55 - Discusses the number of people that there should be in the House of Representatives. Suspicions exist that the 65 people that will be in the House of Representatives are too few, and corruption might result. They cannot be trusted with the public interest. Publics points out that the previous Congresses were not corrupt, so why should this one be?
Choice quote: "In all very numerous assemblies, of whatever character composed, passion never fails to wrest the sceptre from reason. Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob."
56 - It is alleged that the House will be too small to possess a due knowledge of the interests of its constituents.
57 - It is also alleged that the House will be composed of people "taken from that class of citizens which will have the least sympathy with the mass of the people, and be most likely to aim at an ambitious sacrifice of the many to the aggrandizement of the few." Choice quote: "The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust."
58 - A final accusation is that the House will not be increased as the population expands.
59 - The regulation of elections by Congress: the problem of state control.
60 - The regulation of elections by Congress: the problem of national control.
61 - All elections should happen in the counties where the electors reside.
63 - The Senate provides more stability than the House: "A FIFTH desideratum, illustrating the utility of a senate, is the want of a due sense of national character. Without a select and stable member of the government, the esteem of foreign powers will not only
be forfeited by an unenlightened and variable policy, proceeding from the causes already mentioned, but the national councils will not possess that sensibility to the opinion of the world, which is perhaps not less necessary in order to merit, than it is to obtain, its respect and confidence.
64 - IT IS a just and not a new observation, that enemies to particular persons, and opponents to particular measures, seldom confine their censures to such things only in either as are worthy of blame. Unless on this principle, it is difficult to explain the motives of their conduct, who condemn the proposed Constitution in the aggregate, and treat with severity some of the most unexceptionable articles in it.
65 - THE remaining powers which the plan of the convention allots to the Senate, in a distinct capacity, are comprised in their participation with the executive in the appointment to offices, and in their judicial character as a court for the trial of impeachments. As in the business of appointments the executive will be the principal agent, the provisions relating to it will most properly be discussed in the examination of that department. We will, therefore, conclude this head with a view of the judicial character of the Senate.
66 - A REVIEW of the principal objections that have appeared against the proposed court for the trial of impeachments, will not improbably eradicate the remains of any unfavorable impressions which may still exist in regard to this matter. Useful Readings
1. Select one of the Federalist Papers I've linked you to below and summarize the argument it contains.
2. The Great Compromise settled the issue regarding whether the national government would rest on the people or on the states. The bicameral Congress was one of the mechanisms used to settle this issue. How? Outline the differences between the the House of Representatives and the Senate.
3. I've argued that the design of the U.S. Legislature was based on British history. Read through Article One and lift those components that reflect this influence? Which are not?
4. Read through Article 3 of the Texas Constitution and list the similarities and difference between the United States Congress and the Texas Legislature.
5 - Read through the first two sections of Article One of the U. S. Constitution -- the ones that create the House of Representatives and the Senate -- and detail the differences between the two institutions.
6 - Read through sections 8, 9, and 10 of Article One of the U. S. Constitution and outline the powers granted and prohibited to the national and state governments.
7 - As best you can, detail the differences between how the U. S. Congress and Texas Legislature are designed in their respective Constitutions.
8 - A s you know by now, the legislative branches on the national and state levels are bicameral. As you also should know, we have elections coming up. The two chambers of the legislative branch are designed to be autonomous and check each other. The separate and distinct elections for each chamber are meant to make them independent. Review current analyses about the upcoming election and discuss the relative impact the election is projected to have on each chamber. Do the same for the Texas Legislature.
Power Points: The U.S. Congress
The previous week's readings focused on the historical background of the Constitution. We looked at the conflicts that have existed between the executive and legislative authorities, and how executive power is attained at the expense of the legislature. The most critical moment in this historical process was the signing of the Declaration of Right which forced the executive to concede many powers to the parliament. Considering that the parliament embodies the freedom of the individual, this document set the stage for the establishment of individual liberty.
Now we investigate the lessons learned by the founders and how they translated them into the legislative institution established in Article One. As a point of comparison we will also look at the Texas Legislature and where it is similar to the U.S. Congress and where it is different. We will stick to the letter of the Constitution and the controversies associated with it. Additional institutions will be covered in the next two weeks.
Time line:
1781-1789: The Continental Congress convenes.
1787: Philadelphia Convention.
1787-1788: Federalist Papers and Anti-Federalist Papers written.
1788: Article One of the U.S. Constitution. (Read the text here)
1832: Texas Convention of 1832.
1836: Texas Convention of 1836.
1875: Texas Constitutional Convention of 1875.
1876: Article 3 of the Texas Constitution.
Goals: After reading this material, you should be comfortable with the following:
The Constitutional Design
The Constitutional Convention, if you recall, was held in order to strengthen the national government. In order to do so, a national executive and judicial branch had to be established, but more importantly the authority of the national government had to be based on the consent of the general population. There had to be a direct connection between the people of the entire country and governing system. The primary mechanism for doing so was the legislature. Under Articles of Confederation there was no connection between the people and the national government. The states intervened between the two. The states were able then to use their position to negate the ability of the national government to pass laws that could limit state power. For Patrick Henry this was perfectly fine, but for Alexander Hamilton it was not. The Virginia Plan -- and Hamilton's Plan -- were blatant attempts to bypass the states and connect the power of the national government with the people. People could vote directly for members of the lower chamber in each plan, and in the Virginia Plan the lower chamber would then select the upper chamber. In neither plan were states able to select members of the legislature as they had been able to do under the articles. The states suddenly had no standing in the national government.
Supporters of states rights understood the threat this posed for the power of states, and objected. The New Jersey Plan they introduced following the discussion of the Virginia Plan was an attempt to preserve state power. The bicameral system that passed the convention (the Great Compromise) incorporated elements of both. The resulting Congress contains within it the problematic idea that the authority of the national government rests on both the people and the states. Of course this fits easily within the divided nature of the decentralized American system. The representatives of the people can check the representatives of the states. In addition the design allows for the national government to incorporate two distinct types of representative styles in Congress, the delegate and the trustee. The difference between the two touches on a key conflict concerning representation itself. Should a population be represented by people who stick as closely as possible to the direct interests of the population as expressed at a particular point in time, or should the representative look to the future and make decisions based on what they feel best secures those long term interests? In the Articles of Confederation, states could recall delegates at anytime during a session of the legislature. This gave the states complete control over Congress, but it also prevented the institution from effectively securing the long term health of the country. Sometimes what is beneficial in the long term, is not popular in the short term.
So here's the dilemma, we want to be able to control legislatures, but we want them to be effective. We don't like the idea of people spending long periods of time as legislators -- time they could be spending in the local community -- but we also want representatives to know enough about the legislative process to be able to use it to further the interests of their constituents. So what to do? The bicameral system provides a solution. The lower chamber -- The House of Representatives -- is designed to provide delegate representation while the upper chamber -- The Senate -- acts as a trustee. The reason is because of the design of each. Members of the House have two year terms, represent small relatively compact districts, and are voted in directly by the general population. In addition, the entire chamber is up for election at the same time, meaning that any shift in public opinion will have an impact on everyone in the chamber. Not so in the Senate. Senators serve for six year terms, represent entire states -- which, unless you are Wyoming, represent far larger districts than the House, and were originally selected by state legislatures, not the people. In addition, Senators serve overlapping terms of office. Only 1/3rd of Senators face the voters every election, 2/3rds sit each election out. This means that any shift in public opinion will only impact a small minority of Senators in each election. Shifts that cancel themselves out will have no impact on the legislative process. Considering that bills cannot be presented to a President for a signature unless both chambers agree to the bill, each is in a position to check the efforts of the other. Compromise -- in the form of a conference committee -- is generally required before anything passes Congress.
Key Constitutional Features of the United States Congress
Here we go section by section over the Section in Article One in the United States Constitutions
Click below for the entire document:
- Article One from Findlaw.com.
- Text from Constitution.org.
- Text from Avalon Project.
Section One: The Vesting Clause and Bicameralism
- Annotations from Findlaw.com.
- Wikipedia: Section One
- The Founders' Constitution: Article One, Section One.
The legislative is separated from the other powers and vested in a bicameral institution. Note the phrase "herein granted" which is generally taken to mean that the legislative powers are limited to those subjects listed in Article 8. This was one of the reasons why the Federalists did not believe a Bill of Rights was necessary. Congress did not have the jurisdiction to do any of the things the Bill of Rights lists.
Section Two: The House of Representatives
- Annotations from Findlaw.com.
- Pediatric: Section Two
- Website: The U.S. House of Representatives.
This section contains the basic design of the House of Representatives. It establishes that the people of the several states are able to vote directly for House representatives, but also that the states are able to determine who gets to vote. It is the chamber most closely connected to the general population and the one that is supposed to confer a sense of legitimacy to the national government. It is the institution most likely to compete with the states for the allegiance of the citizens. But since suffrage belongs to the states, and would until the 15th Amendment, among others, would federalize it. The section next sets age and residency requirement and states that members of the House of Representatives must actually live in the states that they represent. Notice that it says "states" and not "districts." There is nothing in the Constitution that states that districts -- the 435 relatively equal political sub-units spread across the country -- must exist. Some states early on were represented in the House by at-large representatives. Districts evolved over time however and allow members of the House to represent local interests on the national level.
The reason we have a census is in order to ensure that representation in the House stays relative to the distribution of population across the states. The number of districts in a state corresponds to the number of the people that live in the state as a percentage of the general population (click here for how this is done). But the drawing of districts raised a question that would take many years to address. Do the districts have to be equal in size? Once drawn, districts were sometimes not redrawn for decades. This was the case in Tennessee, where districts had not been redrawn for 60 years. Over that time some urban districts had ten times the population of some rural districts. The fact that each had a single vote in the House -- as well as state legislatures also -- violated the principle of equal representation, which does not exist in the Constitution. The concept of equal representation is not articulated in the Constitution, but in Baker v. Carr, it was mandated that districts be redrawn after every census in order to ensure that people are protected equally. This is a controversial decision since some argue that it is an example of judicial activism. The courts went beyond the clear language of the Constitution to solve what could have better been solved through the political process.
The apportionment clause also brings up the 3/5ths compromise, one of three clauses in the Constitution which deal with slavery (without ever bringing up the term). When vacancies arise in the House, the executive authority of that state can call an election. In Texas this would be administered, as all elections are administered, by the Secretary of State's Office. The only position established in the Constitution is the office of the Speaker. The Speaker was originally intended to be a neutral presiding officer over the House floor, but early in the history of the chamber the potential political power of the position was recognized. As political parties evolved in the chamber, each party would nominate its leaders to be Speaker and the majority party would be able to win the position. This is still the case to this day.
The section then states that other offices can then be created, and many have. These correspond to the large number of institutions that have been created in the House since the first Congress in 1789. Over 10,000 people now work for the House in some capacity. Leadership positions include administrative positions (Chief Administrative Officer, Clerk, House Architect), party positions (floor leaders and whips for the majority and minority), and committee positions (chairs and subcommittee chairs), among others. The House also has the "sole power of impeachment." Together with a trial, this allows the legislature to check the power of the executive and judicial branches by removing people from power. An impeachment is similar to a grand jury indictment. It simply allows a trial to go forward. A simple majority vote (not stipulated in the Constitution) is all that is necessary for the the trial to go forward.
Section Three: The Senate
- Annotations from Findlaw.com.
- Wikipedia: Section Three.
- Website: U.S. Senate.
This section outlines the design, elections and powers of the Senate. The first two clauses establish that the Senate is not only directly tied to state governments, but given enough distance from the preferences of the population (with six year terms) to allow them to act as trustees who can look at the long term interests of the country (anti-federalists would argue that this also gives them enough time to turn oligarchic). States are represented equally and their legislatures choose Senators, so have some degree of control over the Senate itself. This arrangement lasted until Progressives in the early 20th century pushed through the 17th Amendment which changed the process to a popular election of the citizens of the state. The second clause describes the overlapping electoral scheme which is still in operation. This is an additional feature which limits the connection between the general population and the institution. Senators are divided into three separate classes (see class II here). Only one class, one third of the Senators, face the voters in any election. In other words, every two years one third of the 100 Senators is subject to removal from office. Two-thirds are not, so the institution is insulated from the preferences of the electorate. The state legislatures are given the power to fill vacancies, but when they are in recess, the governors can fill the seat with a temporary appointment. Senators have to be a little older than members of the House, but also must reside in the state they represent.
Next we have the only shared position in the Constitution. The Vice President in the executive branch is also the presiding officer (the President) of the Senate in the legislative branch. The VP cannot vote, except to break a tie. Opponents of this measure in the Constitutional Convention argued that this would consolidate executive and legislative power, and lead to tyranny. Others argued that the VP had nothing to do, so there was no harm in giving him the powerless position of President of the Senate. The dual nature of the position makes it ambiguous. Is the person who holds it an executive official or a legislator? Again, other positions can be created, and these include administrative positions that take care of the business of the Senate as well as party and committee positions. Along with the House, the Senate employs thousands of people including the staff people that help run committees and members offices.
The final two paragraphs of Section Three are concerned with the trial of impeached officials. When these things occur the Senate Chamber in fact become a trial court (though not a criminal trial court). The Senators are under oath or affirmation, the Chief Justice presides over trial of presidents, and convictions occur only with two-third votes. This is to minimize the possibility the presidents will be removed for political or policy reasons. It is also stated that convictions only apply to removal from office, the convicted is not sent to jail, again this is not a criminal proceeding. It does not prevent a criminal case from going forward however.
Section Four: Congressional Elections and Yearly Meetings
- Annotations from Findlaw.com.
- Wikipedia: Section Four.
The first clause grants more control to the states over the national legislature by allowing them to set the time, place and manner of holding elections, but Congress can alter those regulations, except concerning where elections will be held. The second clause states that Congress shall assemble at least once every year, and sets a date for the meeting, which was changed in the 20th Amendment. This seems like a relatively non-controversial clause until you remember that one of the key sources of executive power was his ability to prevent Parliament from meeting for sometimes long periods of time, such as the Eleven Years Tyranny under Charles the First. It reminds us of the central role legislatures were argued to play in enhancing individual freedom from the executive.
Section Five: Qualification, Rules of Procedure, and Expulsion of Members
- Annotations from Findlaw.com.
- Wikipedia: Section Five.
In the first clause, each chamber is given the ability to determine whether the individuals sent from each of the state in fact has the qualifications to hold the office. Once a majority has been reached, each chamber can conduct official business. A quorum is in fact rarely present at any moment on the floor of either chamber. Other requirements, including committee membership, actually requires that members of each chamber be in multiple places at any one moment so the requirement is probably impossible. If a quorum is necessary, one can be called relatively quickly. If necessary, each chamber can also mandate that those who are not present attend. It is illegal for members to stop the legislative process form going forward by not attending the session.
Each chamber can establish its own rules of procedure. As time has passed, each chamber has developed into unique institutions as rule of procedure have varied in each. The large size of the House (435 members) has led to the development of strict rules guiding floor proceedings, a rules committee determines, for example, how much time can be spent debating an item on the floor and whether amendments can be offered. Anything said or added to a bill has to be relevant, or germane, to the bill. These rules give the floor managers (the majority and minority leaders of each party) great control over the house floor, giving them additional means of punishing and rewarding members. House members can only speak if recognized to do so by the floor manager.
The Senate, due to its lower numbers and less contentious environment, has never developed similar rules. Norms guide the behavior on on the floor, each Senator recognizes the next Senator to speak (this is done following rules of seniority, which is a major determinant of who gets to do what in the Senate), so there isn't the same opportunity for party leaders to control individual members. The lack of a time limit has led to the development of the filibuster as a procedural tactic to delay activity in the Senate. A vote of 60 Senators is required to invoke cloture, thereby stopping debate and proceeding directly to a vote. There are no rules regarding "germaneness", so a large variety of irrelevant amendments can be added to a bill that seems likely to pass. This can be a way for a minority of Senators to compel passage of a pet bill by forcing other Senators to vote for it. It is rare for members of Congress to be expelled, but it can happen. Here is a list of expelled and censured Senators.
Since the time of the first Congress in 1789, each chamber has kept a journal of its proceedings, as they are able to do following constitutional language. The Congressional Record is the title of this record and contains a transcript of every thing spoken in each chamber. Its a great historical document. Here is a link to the Congressional Record online, and here is a link to early journals kept by Congress. If one-fifths of the members of either chamber want a recorded vote, it is taken. This also provides a great historical record and allows constituents to follow the behavior of their elected officials. Interest groups can also use these records to grade congressmen based on how closely they support the interests of the group. Finally, since the legislature can only function if both chambers are meeting, neither one can adjourn without the consent of the other.
Section Six: Compensation, Privilege from Arrest, Free Speech on the Floor, and Conflicts of Interest
- Annotations from Findlaw.com.
- Wikipedia: Section Six.
The first clause simply states that legislators are to be paid for their services. It does not stipulate how much or how that is to be determined. The 27th Amendment states that any raise in pay cannot take effect until the next Congress convenes.
- CRS Report on the History of Congressional Pay.
Next, members of Congress are privileged from arrest in going to and from Congress (with exceptions) and from law suits pertaining to what they say on the floor of either chamber. Both are ways to ensure that members of each chamber are insulated from the executive branch who might wish to arrest opponents in the legislature. King Charles attempted to do something similar in Parliament, which did nothing to keep his head attached to his body. Each of these freedoms can be traced back well into British history. The second clause simply states that members of Congress can't hold other offices, nor can other officers become members of Congress. The potential for conflicts of interest ought to be obvious.
Section Seven: Revenue Bills and the Bill Making Process.
- Annotations from Findlaw.com.
- Wikipedia: Section Seven.
This section provides a broad outline of the bill making process. It begins by making a crucial statement. Bills for raising revenue must be first introduced in the House. Since the House is drawn to be closest to the general population and is argued to be most closely controlled by it, then this is the best ways to ensure that tax legislation is in fact passed with the consent of the governed. It then proceeds to a discussion of the bill making process, but it only discusses what happens to a bill once it passes both chambers of Congress and is presented to the president. The right of each chamber to develop rules of procedure discussed above has led to the development of an elaborate system for making laws. This process involves two institutions not mentioned in the Constitution: the political party and the committee.
Political parties evolved quickly in Congress despite the fact that eminent individuals such as George Washington argued against them. They are effective tools for organizing members of each chamber, both within and across each chamber, as well as with the president. Both major parties have evolved to the point where they have sophisticated organizations that include policy and steering committees that help develop legislation and figure out how best to pass them. If the party is in the minority, they determine how best to defeat policies they do not like. Committees evolved in the early Congresses as organizations that can focus on the policies implemented by certain executive branch agencies. As agencies developed to implement certain laws, a congressional committee was generally established in each chamber to oversee the implementation of that law. For example, when legislation establishing the Department of the Treasury was passed, the House established the committee on Ways and Means to oversee it. Tight relationships have since developed between these institutions. It is not surprising to see people go from one institution to another.
Committees,or standing committees , have worked themselves into the bill making process. Each chamber has about 20 such committees which allow for member of Congress to specialize on a specific topic. Each committee has a number of subcommittees that allow for further specialization. Generally bills are assigned to a committee after they are introduced into the House or Senate, and then the committee sends it down to the appropriate sub-committee. This process is very important because members of Congress compete to be members of particular committees based on the expectation that they will be able to consider certain bills when they are introduced in Congress. If the sub-committee chooses to hear the bill -- they can always table it -- they can have hearings on it, and mark up it up, meaning they can go line by line through the bill and change whatever they want. If reported favorably, the process starts again at the full committee. If approved by the full committee, it then goes to the floor for consideration by the full body.
As mentioned above, if the bill is reported to the floor of the House, the Rules Committee has to determine the rules for debate for the bill. This means stipulating the amount of time that can be spent debating the bill and whether amendments can be offered -- an open or closed rule. If the bill passes one chamber, it goes to the other and the process starts again. Since the resulting bill will likely look very different once it emerges both chambers, a conference committee is generally necessary to reach a compromise between the two chambers and if that compromise (the conference report) passes both chambers, that is the bill that is presented to the president. Note that nothing above is written in the Constitution, and that this is a very compressed overview of the process. See How Our Laws Are Made for a full version of the process. It is also subject to change. In addition, there is no reason for every bill introduced into Congress to follow this entire process. In Thomas, which contains information about the legislative process from the Library of Congress, full information about how every bill passed in the last 30 years is available online. Some take the full process, while others are fast tracked for whatever reason.
Section Seven does state that once a bill is presented to the president, he can sign it and let it pass into law without a signature -- but only if at least ten legislative days elapse, or veto the bill. If the bill is vetoed, it is sent back to the chamber that first passed the bill for another vote. If two thirds of the chamber pass the bill, it is sent to the other chamber and if the process is repeated, then the bill becomes a law over the president's veto. One of the more controversial activities of recent presidents has been the use of signing statements, sometimes undisclosed, that outline the president's interpretation of the bill he is signing. This way, he may not have to veto a given bill, since he has made it into whatever he wants it to be.
Section Eight: The Enumerated Powers of Congress
- Annotations from Findlaw.com.
- Wikipedia: Section Eight.
In 2301, we covered the reasons why the constitutional convention was called. It was driven by Federalists who wanted to ensure that the national government possessed the powers necessary to establish the United States as a viable commercial republic. This meant clearly establishing that the Congress could pass laws about commercial and military issues. Strict constitutionalists argue that the powers of the national government are largely restricted to the items listed here. Some wiggle room has been found in the two "elastic clauses." These are the necessary and proper clause and the commerce clause.
Section Nine: The Limits of Congressional Power
- Annotations from Findlaw.com.
- Wikipedia: Section Nine.
This section establishes clear restrictions on governmental power. Aside from political debates about this subject that hinge on the proper definition of "necessary and proper" and "commerce," explicit limits are established in Section Nine. Some of these restrictions are ancient (habeas corpus and ex post facto laws) others are meant to clarify that the United States was not a hereditary aristocracy as was Britain. One problem raised by this section concerns those powers not listed here. It is a similar argument presented by opponents to the Bill of Rights. When one bothers to list a few items that are clearly restricted from the national government, what about those that are not mentioned? If this is in fact a thorough list, then the national government has far broader powers than those simply listed in Section 8.
Section Ten: The Limits of State Power
- Annotations from Findlaw.com.
- Wikipedia: Section Ten.
One of the consequences of the states ratifying the Constitution was that they accepted the idea that they were no longer nations, and did have power to do the things that nations are able to do. These limits are listed in Section Ten of the Constitution. The specific limitations concern the ability of states to engage in commercial and diplomatic treaties and military actions separate from the national government.
The Federalist and Anti Federalist Debate
As we discussed in 2301, immediately following the signing of the Constitution, a debate began concerning whether the document should be ratified by the states. The Federalist Papers, written collectively and published anonymously by John Jay, Alexander Hamilton and James Madison argued in favor of ratification while a more disorganized group called the Anti-Federalists argued against it. Out of 87 total articles written by the Federalists, the fourteen below concern the design of the legislature. Here is a brief outline of the arguments covered in each:
52 - The qualifications of the electors of the house and those that are eligible to be elected to the house. Suffrage is determined by the states. The two year term is justified. "It is essential to liberty that government in general should have a common interest with the people." Discusses the frequency of elections and the design of the House of Commons.
53 - More about the House. The frequency of elections matters: “Where annual elections end, tyranny begins.” But the longer one is in office, the more experience one acquires. There's your dilemma.
54 - Concerns the Apportionment of members of the House to the various states, justifies the 3/5ths compromise.
55 - Discusses the number of people that there should be in the House of Representatives. Suspicions exist that the 65 people that will be in the House of Representatives are too few, and corruption might result. They cannot be trusted with the public interest. Publics points out that the previous Congresses were not corrupt, so why should this one be?
Choice quote: "In all very numerous assemblies, of whatever character composed, passion never fails to wrest the sceptre from reason. Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob."
56 - It is alleged that the House will be too small to possess a due knowledge of the interests of its constituents.
57 - It is also alleged that the House will be composed of people "taken from that class of citizens which will have the least sympathy with the mass of the people, and be most likely to aim at an ambitious sacrifice of the many to the aggrandizement of the few." Choice quote: "The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust."
58 - A final accusation is that the House will not be increased as the population expands.
59 - The regulation of elections by Congress: the problem of state control.
60 - The regulation of elections by Congress: the problem of national control.
61 - All elections should happen in the counties where the electors reside.
62 - A preliminary analysis of the Senate
63 - The Senate provides more stability than the House: "A FIFTH desideratum, illustrating the utility of a senate, is the want of a due sense of national character. Without a select and stable member of the government, the esteem of foreign powers will not only
be forfeited by an unenlightened and variable policy, proceeding from the causes already mentioned, but the national councils will not possess that sensibility to the opinion of the world, which is perhaps not less necessary in order to merit, than it is to obtain, its respect and confidence.
64 - IT IS a just and not a new observation, that enemies to particular persons, and opponents to particular measures, seldom confine their censures to such things only in either as are worthy of blame. Unless on this principle, it is difficult to explain the motives of their conduct, who condemn the proposed Constitution in the aggregate, and treat with severity some of the most unexceptionable articles in it.
65 - THE remaining powers which the plan of the convention allots to the Senate, in a distinct capacity, are comprised in their participation with the executive in the appointment to offices, and in their judicial character as a court for the trial of impeachments. As in the business of appointments the executive will be the principal agent, the provisions relating to it will most properly be discussed in the examination of that department. We will, therefore, conclude this head with a view of the judicial character of the Senate.
66 - A REVIEW of the principal objections that have appeared against the proposed court for the trial of impeachments, will not improbably eradicate the remains of any unfavorable impressions which may still exist in regard to this matter.
Useful Readings
- Article I of the U.S. Constitution
- This Nation: Congress.
- GOP Access: Analysis of cases before the Supreme Court.
- Constitution.org: Founding Documents.
- Wikipedia: U.S. House of Representatives
- U.S. House of Representatives.
- Wikipedia: U.S. Senate
- U.S. Senate.
- Senate.Gov: The Senate and the Constitution.
- Bicameralism
- Representation
- Federalist Papers
Past Written Assignments
1. Select one of the Federalist Papers I've linked you to below and summarize the argument it contains.
2. The Great Compromise settled the issue regarding whether the national government would rest on the people or on the states. The bicameral Congress was one of the mechanisms used to settle this issue. How? Outline the differences between the the House of Representatives and the Senate.
3. I've argued that the design of the U.S. Legislature was based on British history. Read through Article One and lift those components that reflect this influence? Which are not?
4. Read through Article 3 of the Texas Constitution and list the similarities and difference between the United States Congress and the Texas Legislature.
5 - Read through the first two sections of Article One of the U. S. Constitution -- the ones that create the House of Representatives and the Senate -- and detail the differences between the two institutions.
6 - Read through sections 8, 9, and 10 of Article One of the U. S. Constitution and outline the powers granted and prohibited to the national and state governments.
7 - As best you can, detail the differences between how the U. S. Congress and Texas Legislature are designed in their respective Constitutions.
8 - A
s you know by now, the legislative branches on the national and state levels are bicameral. As you also should know, we have elections coming up. The two chambers of the legislative branch are designed to be autonomous and check each other. The separate and distinct elections for each chamber are meant to make them independent. Review current analyses about the upcoming election and discuss the relative impact the election is projected to have on each chamber. Do the same for the Texas Legislature.